Evidently a “fashionable” trademark dispute is brewing between Tory Burch and her Ex-husband, Christopher Burch, over the launch of his C Wonder store and brand. Gossipers are saying that C Wonder is a cheap knockoff of the Tory Burch brand… and potentially infringes Tory Burch trademarks. (gotta love trademark gossip!)
The C Wonder store is down in Soho on Spring Street and much like its website, http://www.cwonder.com/ (which features a $44 top on the homepage)… the store is filled with fun items that are much less expensive than Tory Burch merchandise. By comparison… if you click on the Tory Burch website, http://www.toryburch.com, its homepage features a $375 dress, $250 pants and a $225 cardigan.
Do these price differentials matter? Yes… price always matters… even in the evaluation of a potential trademark claim. Interestingly, the evaluation of a potential trademark claim, like this Burch/Burch issue, includes an analysis of how likely consumers are to be confused as to the source or maker of the products and the PRICE of the items factor into the analysis. Generally speaking, consumers pay more attention to what they are buying when they purchase an expensive item. (Don’t you pay more attention when making larger purchases? Would you confuse a $44 C Wonder shirt with a $225 Tory Burch shirt?)
A trademark case that exaggerates this point regarding price and consumers LACK of confusion regarding the maker of products, involves dog toys called Chewy Vuiton (made by Haute Diggity Dog) which sell for under $20 and Louis Vuitton handbags which sell for over $900. The court noted the price differential between the items in its decision which held that there was no trademark infringement in the case. (Clearly there were other obvious differences between a squeaky dog toy in the shape of a handbag and an original, Louis Vuitton bag and the court held that the Chewy Vuitons were a successful parody of the Louis Vuitton bags).
Back to a possible trademark infringement claim between the Ex-Burches… and their brands… it will be interesting to see if and how this possible trademark infringement claim develops. Currently, as far as I know, this issue is merely a murmur of frustration that has sparked trademark gossip about a possible trademark claim. Stay tuned for more on this “fashionable” trademark dispute.
See also: Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252 (4th Cir. 2007); Jessica Pressler’s article, “His.Hers.” at http://nymag.com/fashion/12/spring/christopher-tory-burch-2012-2/; @iplegalfreebies and www.kasterlegal.com.
BY: Vanessa Kaster, Esq., LL.M.
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